Workplace harassment violates employment antidiscrimination law when it is based on a protected category, such as sex, race, or religion. This does not encompass the full range of hostile or abusive treatment that workers may encounter. A New York City employment discrimination lawyer must be able to identify a protected category under laws like Title VII of the Civil Rights Act of 1964 in order to bring a claim based on workplace bullying. State legislators in New York have introduced a bill intended to assist victims of workplace bullying, known as the Healthy Workplace Bill (HWB). The bill has not passed in any state as of April 2019, although a few states have passed laws that address workplace bullying to some extent.
What Is Bullying?
No single legal definition of “bullying” exists in the context of the workplace. The Workplace Bullying Institute, which researches the phenomenon and advocates for measures like the HWB, defines it as “abusive conduct” that “[t]hreaten[s], humiliat[es], or intimidate[s]” a person or prevents them from getting their work done through “interference” or “sabotage.” This is similar to the legal definition of a hostile work environment by agencies like the Equal Employment Opportunity Commission (EEOC).
Antidiscrimination Law and Bullying
Whether laws like Title VII and the New York City Human Rights Law (NYCHRL) apply to workplace bullying depends on the basis for the alleged abusive actions. In a landmark decision recognizing same-sex sexual harassment as a violation of Title VII, Supreme Court Justice Scalia noted that “Title VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). He further stated that Title VII is not “a general civility code for the American workplace.” Id.
More recently, a Manhattan federal judge ruled that Title VII does not apply to “[b]ullying and harassment…unless they are motivated by the victim’s membership in a protected class.” In order to assert a claim under the NYCHRL, a person must be able to establish that a factor like race, sex, religion, sexual orientation, gender identity or expression, or disability was behind the bullying.
The Healthy Workplace Bill
Legislators most recently introduced the HWB in the New York State Senate in January 2019 as S2261, and in the Assembly in April 2019 as A7366. The bill would amend the New York Labor Law by adding Article 20-D, entitled “Healthy Workplaces.” The bill defines “abusive conduct” as “acts, omissions, or both, that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct.” It defines an “abusive work environment” as a situation where a person is expected to endure abusive conduct in the workplace “with intent to cause pain or distress,” and which “causes physical harm, psychological harm or both.”
The bill would allow employees to bring a civil suit against employers who perpetrate or fail to prevent abusive work environments. No state has passed the HWB. Tennessee enacted a law in 2015 that addresses workplace bullying in state, county, and municipal government, using language similar to the HWB. See Tenn. Code § 50-1-501 et seq.
The employment attorneys at Phillips & Associates represent New York City employees, former employees, and job applicants, helping them assert their rights in claims for unlawful workplace practices. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation with a member of our team.